Ragin v. Porter Hayden Co.

¹²¹ HOLLANDER, Judge. This case is a by-product of the consolidated asbestos trials conducted in the Circuit Court for Baltimore City. We are called upon here to consider the scope of a stipulation as to liability executed in connection with a consolidated asbestos ease, and to construe a jury verdict in a case that was previously considered by the Court of Appeals in 1995. 1 Joyce Ragin, appellant, is the daughter of the late Flemmie Pettiford and personal representative of his estate. In 1990, appellant initiated a wrongful death and survival action in the Circuit Court for Baltimore City against more than a dozen defendants, including Porter Hayden Company (“Porter Hayden”), 2 appellee, a supplier and installer of products containing asbestos.

She alleged that Pettiford suffered from asbestosis as a result of his occupational exposure to asbestos-containing products, for which the defendants were allegedly responsible. It is undisputed that Pettiford’s asbestos exposure ended in 1945. Appellant’s suit was subsequently consolidated with 8,554 other actions involving claims for personal injuries or wrongful death arising from asbestos exposure. The eases were consolidated in order to resolve at one trial various ¹²² common issues, including “state of the art” 3 and punitive damages.

That trial was conducted in four phases in 1992 in the Circuit Court for Baltimore City, (Levin, J. presiding), and is commonly referred to among asbestos litigators as Abate I. In Abate I, the jury found, inter alia, that Porter Hayden was liable for compensatory damages as to users and bystanders on a negligence basis for the period 1956 through 1979, and that it was strictly liable to users and bystanders from 1956 to the present. Godwin, 340 Md. at 380, 667 A.2d 116 . In addition, the jury determined that appellee was liable for punitive damages from 1965 to July 30, 1992, the date of verdict on that issue. Post trial motions were denied in a 225 page opinion issued by Judge Levin in June 1993.

Following additional legal proceedings, a final judgment was entered in November 1993. A second consolidated asbestos trial, known as Abate II, was held in the Circuit Court for Baltimore City over a period of many months, beginning in June 1994 and concluding in February 1995 (Rombro, J., presiding). With respect to approximately 1,300 plaintiffs, Abate II resolved common issues identical to the common issues tried in Abate I. During the trial of Abate II, appellee reached an agreement with some of the plaintiffs in that case, in the form of a “Stipulation,” in which appellee waived proof of negligence and strict liability in return for the plaintiffs’ agreement to waive their claims with respect to punitive damages, breach of warranty, fraud, and conspiracy. The plan for asbestos litigation in the circuit court also-contemplated so-called “mini-trials,” to be held after the consolidated trials, at which the claims of the common issue plaintiffs would be finally adjudicated upon determination of ¹²³ whether an individual common issue plaintiff was actually exposed, to and injured by asbestos products.

Appellant’s mini-trial never took place, however, because the circuit court granted appellee’s motion for summary judgment; that ruling is at issue here. In granting summary judgment, the court reasoned that appellant was not entitled to pursue her claim because Pettiford’s asbestos exposure ended in 1945 and the jury had determined in Abate I that appellee was not liable to any common issue plaintiffs whose last exposure to asbestos occurred before 1956. After the court denied appellant’s motion to alter or amend judgment, appellant noted this appeal. She presents the following questions for our review, which we have rephrased: I. Did the circuit court err in concluding that the Stipulation entered into during Abate II and the negligence date established in Abate I barred appellant’s recovery?

II

Assuming, arguendo, that the Stipulation did not include appellant, did the circuit court err in concluding that appellee did not owe Pettiford a continuing duty to warn? For the reasons that follow, we shall vacate the judgment and remand. FACTUAL BACKGROUND From the late 1920s until approximately 1972, Porter Hayden and its predecessors distributed and installed asbestos products, primarily for Johns-Manville, a manufacturer. Godwin, 340 Md. at 356-57 , 667 A.2d 116 .

Porter Hayden “describe[d] itself as ... an insulation contractor and supplier of thermal insulation products in Maryland and three other States.” Id. at 356, 667 A.2d 116 . By about 1972, Porter Hayden discontinued its use of products containing asbestos. Id. at 364, 667 A.2d 116 . Pettiford was allegedly exposed to asbestos dust in the course of his employment from April 1943 to September 1945.

During that time, Pettiford worked as a rigger/lagger for ¹²⁴ Maryland Shipbuilding and Drydock and as a rigger at Bethlehem Steel’s Fairfield Shipyard. Eventually, Pettiford developed asbestosis and died in February 1990. 4 Appellant filed her complaint on August 28,1990, “incorporating by reference the causes of action ... set forth in the ‘Shipyard Cases Master Complaint,’ ” 5 and asserting claims for strict liability, negligence, conspiracy, breach of warranty, and wrongful death. Because appellant’s case was part of the consolidation in Abate I, exposure and damage issues were to be resolved at a separate mini-trial. Trial in Abate I was divided into four phases and consumed six months in 1992.

The case, as we noted, involved certain common issues raised by 8,555 plaintiffs, all of whom filed suit prior to October 1, 1990. In addition, to facilitate the jury’s understanding of the issues presented in an asbestos case, the cases of six illustrative plaintiffs were tried to full and final judgments. Although over 100 defendants had been named in the various suits, the claims against all but fifteen were dismissed prior to trial, and nine of the remaining defendants settled prior to verdict. Several defendants also filed various cross-claims.

The court severed most of the cross-claims from Abate I, and determined that they would be tried in Abate II. The Abate I jury found in favor of three of the individual plaintiffs and against the other three. On the common issues applicable to the remaining 8,549 plaintiffs, the jury found the six remaining defendants, including Porter Hayden, and one cross-claim defendant, negligent and strictly liable. As to appellee, the jury in Abate I found Porter Hayden liable for compensatory damages to asbestos users and bystanders from 1956 to 1979 on a negligence theory, and from 1956 to the date of verdict on a strict liability theory.

Moreover, four defen ¹²⁵ dants, Porter Hayden among them, were found liable for punitive damages. One of those defendants subsequently settled and another was dismissed from the case after petitioning for relief under the Bankruptcy Code. The Court of Appeals subsequently reversed the award of punitive damages against the remaining two defendants, including Porter Hayden. See generally Godwin, 340 Md. 334, 382, 424-26 , 667 A.2d 116 (concluding, inter alia, that evidence was insufficient to support punitive damages award against Porter Hayden as to bystanders and, on motion for reconsideration, that evidence was also insufficient to support punitive damages against Porter Hayden with respect to users).

Moreover, the Court affirmed in part and reversed in part the various judgments for compensatory damages. In June 1994, nearly two years after the conclusion of Abate I, Abate II proceeded to trial in the circuit court. That trial, which lasted several months and continued into early 1995, involved approximately 1,300 plaintiffs who filed asbestos suits between October 1, 1990, and October 1, 1993. In three phases, the parties litigated common issues identical to those litigated in Abate I, as well as the claims of five illustrative plaintiffs, which were tried to full and final judgment.

By the time of trial, the plaintiffs sought to recover from eleven defendants. Moreover, Abate II resolved cross-claims severed from Abate I, as well as cross-claims and third-party claims related to Abate II. In its jury instructions in Abate II, the court advised the jury, inter alia, that a manufacturer has a continuing duty to warn users of a defective product, and must make reasonable efforts to do so. ACandS, 121 Md.App. at 637, 710 A.2d 944 .

With respect to the negligence claim at the trial in Abate I, the verdict sheet read, in pertinent part: 6 NEGLIGENCE 1. a) Do you find by a preponderance of the evidence that Defendant Porter Hayden Company was negligent in manu ¹²⁶ factoring, selling, distributing or installing any of its asbestos-containing products? Indicate your answers on the chart [below]. b) If you find Defendant Porter Hayden Company was negligent as to one or more products, indicate the dates of the Defendant’s negligence for each product with respect to foreseeable USERS and BYSTANDERS. DEFINITIONS A USER is defined as an individual who comes in contact with asbestos fibers by directly handling an asbestos-containing product. A BYSTANDER is defined as an individual who did not directly handle an asbestos-containing product, but was near enough to an asbestos-containing product’s fibers to come in contact with those fibers. * * * Porter Hayden Company (a) NEGLIGENT MANUFACTURE, SALE, DISTRIBUTION OR INSTALLATION (b) DATES OF NEGLIGENT MANUFACTURE, SALE, DISTRIBUTION OR INSTALLATION, IF ANY PRODUCTS YES NO USERS BYSTANDERS ALL OF THE PRODUCTS BE- X 1956-1979 1956-1979 LOW -OR-NONE OF THE PRODUCTS BELOW -OR-ONE OR MORE OF THE FOLLOWING [SEVEN ASBESTOS-CONTAINING] PRODUCTS....

Similarly, on the issue of strict liability, the verdict sheet stated, in part: STRICT LIABILITY 1. a) Do you find by a preponderance of the evidence that Defendant Porter Hayden Company manufactured, sold, distributed or installed asbestos-containing products that ¹²⁷ were in a defective condition unreasonably dangerous to foreseeable USERS or BYSTANDERS? Indicate your answers on the chart [below]. b) If you find one or more of Defendant Porter Hayden Company’s products was defective and unreasonably dangerous, also indicate the dates each product was defective with respect to foreseeable USERS and BYSTANDERS. (a) DEFECTIVE AND Porter Hayden Company UNREASONABLY DANGEROUS <b) DATES DEFECTIVE AND UNREASONABLY DANGEROUS, IF ANY PRODUCTS YES NO USERS BYSTANDERS ALL OF THE PRODUCTS BELOW X -OR-NONE OF THE PRODUCTS BELOW -OR-ONE OR MORE OF THE FOLLOWING [SEVEN ASBESTOS-CONTAINING] PRODUCTS.... 1956- 1956-TO PRESENT TO PRESENT After briefs were filed by the parties in Godwin (i.e., the appeal of Abate I), but before oral argument, Porter Hayden settled with over 7,900 of the consolidated plaintiffs from Abate I. Appellant was not among them. On October 27, 1998, before a trial date was set for appellant’s mini-trial, Porter Hayden moved for summary judgment. 7 In support of its motion, appellee filed: (1) a copy of appellant’s complaint; (2) a paper documenting Pettiford’s disease and the times and places of asbestos exposure; and (3) copies of the verdict ¹²⁸ sheets as to Porter Hayden from Abate I. Relying on the jury’s determination of liability in Abate I, Porter Hayden averred that it could not be held liable for exposure to asbestos products prior to 1956, and therefore it was not liable to Pettiford, whose asbestos exposure ended in 1945.

At all stages of this litigation, including this appeal, Clifford W. Cuniff, Esquire, has represented appellant. On November 19,1998, Cuniff filed appellant’s opposition to Porter Hayden’s motion, together with a copy of the Stipulation. In her opposition, appellant alleged that Porter Hayden’s liability to “all plaintiffs represented by Cuniff in Abate I and Abate II was finally resolved by [Stipulation and not by verdict.” The Stipulation, which was negotiated during the trial of Abate II and the pendency of the appeal of Abate I, provided: IN RE: PERSONAL INJURY * IN THE ASBESTOS LITIGATION * CIRCUIT COURT ABATE, et al., * FOR v. * BALTIMORE CITY AcandS, et al. * Consolidation No. 93076701 STIPULATION RESOLVING COMMON ISSUES DETERMINATIONS OF DEFENDANT PORTER HAYDEN COMPANY Each of the Plaintiffs represented by the undersigned counsel whose cases have been consolidated in the case number captioned above, hereby agree with Defendant Porter Hayden Company that Porter Hayden waives proof of its alleged negligence and strict liability, in exchange for which each Plaintiff waives and dismisses with prejudice his or her claim for punitive damages and any claim of breach of warranty, fraud, conspiracy, and/or market share. Any judgment entered pursuant to this stipulation shall not be subject to appeal by any party to this agreement based on the failure to prove negligence and/or strict liability, or for failure to award punitive damages.

The undersigned attorneys hereby represent and acknowledge the authority of their respective clients to execute this stipulation on behalf of each of their clients. ¹²⁹ Although undated, the Stipulation was signed by Gardner M. Duvall, Esquire, of Whiteford, Taylor & Preston (collectively, “Whiteford, Taylor”) for Porter Hayden and by Joseph F. Rice, Esquire, of Ness, Motley, Loadholt, Richardson & Poole (collectively, “Ness, Motley”), for “the Plaintiffs.” According to appellant, Ness, Motley was co-counsel with Cuniff for all Abate I and Abate II plaintiffs who retained Cuniff. Appellant also supported her opposition with an affidavit of John E. Herrick, Esquire. Herrick averred, in pertinent part: 4. I personally participated in the negotiations and resolution of discussions leading tot he [sic] Stipulation Resolving Common Issues Determinations of Defendant Porter Hayden Co. 5.

It was my understanding and the intent of the Stipulation that it was to be applicable to all Abate I and Abate II consolidated plaintiffs. 6. The common issues involved in 1994 related to the liability dates of Porter Hayden for both Abate I and Abate II plaintiffs which had been consolidated into the Abate II trial and cross-claims determination for all plaintiffs. 7. As a result of the Stipulation ..., Porter Hayden has waived any defense to negligence or strict liability against it, including any defense regarding the dates of Porter Hayden’s liability, as to Abate I plaintiffs. Alternatively, appellant argued that, even in the absence of the Stipulation, the jury’s verdict did not warrant a finding that appellee was not liable to appellant based on its continuing duty to warn.

In essence, she claimed that although Pettiford’s exposure ended before 1956, the jury’s finding of negligence as of 1956 meant that Porter Hayden’s duty to make reasonable efforts to warn Pettiford commenced as of that time and continued through the end of his life. Appellant suggested that “[t]he breach of that duty creates liability regardless of when” the decedent was last exposed. On December 18, 1998, Porter Hayden filed its reply to appellant’s opposition, alleging that the Stipulation applied only to those plaintiffs who were represented by Cuniff and ¹³⁰ Ness, Motley in Abate II. Appellee pointed out that the Stipulation’s . caption refers only to “Consolidation No. 93076701,” which was Abate II’s case number.

Consolidation Numbers 89236704 and 89236705 were used for Abate I. Moreover, in support of its reply, Porter Hayden attached an excerpt of a similar stipulation reached with plaintiffs represented by the Law Offices of Peter G. Angelos. In contrast to the Stipulation at issue here, that document specifically referred to all three consolidation numbers assigned to Abate I and Abate II. Appellee also offered an affidavit of Duvall, which stated, in part: “In making the [S]tipulation, Mr. Rice [plaintiffs’ counsel] expressly declined to extend the agreement to Abate 1 cases, with the statement that punitive damages had been won in Abate 1, and would not be negotiated away.” With respect to appellant’s allegation that Porter Hayden owed Pettiford a continuing duty to warn, appellee asserted that the jury in Abate I decided that Pettiford’s injury “was not caused by the fault of Porter Hayden. The exposure may have caused harm, but Porter Hayden’s fault did not.

Mr. Pettiford has a claim of breach of a continuing duty, without any harm resulting from the breach. The harm was caused by events preceding the breach.” The court held a hearing on appellee’s motion for summary-judgment on January 25, 1999. At the conclusion of the hearing, the court granted appellee’s summary judgment motion, explaining: I believe that this issue is ripe for resolution. I don’t think that any testimony is necessary.

I certainly wouldn’t hear from Mr. Duvall as to what his opinion is as to what the agreement meant, and I’m not going to accept from Mr. Herrick an affidavit as to what he thinks the agreement and stipulation meant. The rule of construction is parole [sic] evidence is inadmissible. The [Stipulation] is susceptible to interpretation on its face. I think that it is.

I don’t think it is that unusual or that difficult to determine what it is, and I think ¹³¹ outside evidence from the lawyers who were involved with each one giving me his spin as to what he thinks they had in mind I don’t think would be admissible. So I look at the agreement. The agreement speaks to negligence and strict liability. I’m quoting. “Proter [sic] Hayden waives proof of its alleged negligence and strict liability.” It doesn’t say, and I think I have seen agreements such as this before, that doesn’t say that anybody that has a claim against Porter Hayden that Porter Hayden is going to be responsible for them.

The person still has to show an exposure to a Porter Hayden product. The person still has to show that the exposure came at a time when Porter Hayden was responsible. The agreement, in my judgment, doesn’t address that at all. The agreement says they are waiving proof of negligence and strict liability.

That means the plaintiff still has to prove exposure, and for the purposes of this case in Abate I they didn’t. They didn’t prove to the jury that their client was exposed—that these clients were exposed during the period of time that Porter Hayden was responsible. ... I don’t know why counsel seems to think it is such a great case, great in the sense of so many points involved. I don’t.

It makes perfect sense. This was, after all, in a time, when we have to go back in time, this was at a time when punitive damages were very much alive. Defendants were concerned about punitive damages and defendant said okay, if you agree that you are not going to claim punitive damages, I will agree that we were negligent and strictly liability [sic]. Now, all you have got to show is your guy, and that is essentially what mini trials is, isn’t it [sic]?

A mini trial, you say okay, defendant is negligent, now you have to come in in a mini trial and you have to show exposure to the defen ¹³² dant’s product and what the disease is and so forth, and that is what the plaintiffs didn’t show in Abate I. The second part of the plaintiff’s argument ... I just have difficulty accepting. The defendant was found not to be responsible to [appellant] by reason of the fact that [Pettiford’s] exposure to asbestos came at a time when the defendant, Porter Hayden, was not responsible. How it can go from not being responsible to being responsible at some later time, maybe even a period of a number of years, it is difficult for me to fathom.

Even if you accept, as I guess one must, that there is a continuing duty to warn, I don’t know what that means. I don’t know if that means that Porter Hayden has to go back and warn the whole universe of people who might have been exposed to some of their products prior to a certain date, I don’t know. All I know is that in this case the jury said they weren’t responsible. I assume that it was never submitted to the jury.

I don’t know. I don’t know this, whether it was submitted to the jury, the issue of a continuing duty to warn. If it wasn’t, it is waived. The plaintiff has its right to bring its case against the defendant on all the theories that are available to it, and if it leaves some out, it can’t come back and say now I want another trial because I thought of another theory of liability. * * * I find that the [Stipulation] for the reasons I have already stated goes to the negligence question, as I have already outlined, and there has been a failure of proof on the part of the plaintiff____ We shall include additional facts in our discussion.

STANDARD OF REVIEW “Summary judgment is appropriate where there is no genuine dispute of material fact and the moving party is ¹³³ entitled to judgment as a matter of law.” King v. Board of Educ., 354 Md. 369, 376 , 731 A.2d 460 (1999); see Md. Rule 2-501(e); Philadelphia Indem. Ins. Co. v. Maryland Yacht Club, Inc., 129 Md.App. 455, 465 , 742 A.2d 79 (1999); Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md.App. 381, 386 , 693 A.2d 370 (1997). In reviewing the circuit court’s grant of summary judgment, we evaluate “the same material from the record and deeide[ ] the same legal issues as the circuit court.” Lopata v. Miller, 122 Md.App. 76, 83 , 712 A.2d 24 , cert. denied, 351 Md. 286 , 718 A.2d 234 (1998).

In order to proceed to trial, the non-moving party must first produce evidence of a disputed material fact. See Scroggins v. Dahne, 335 Md. 688, 691 , 645 A.2d 1160 (1994); Wankel v. A & B Contractors, Inc., 127 Md.App. 128, 156 , 732 A.2d 333 , cert. denied, 356 Md. 496 , 740 A.2d 614 (1999). A material fact is one that will alter the outcome of the case, depending upon how the fact-finder resolves the dispute. King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); Faith v. Keefer, 127 Md.App. 706, 734 , 736 A.2d 422 , cert. denied, 357 Md. 191 , 742 A.2d 521 (1999).

In opposing the motion, the non-moving party must present more than “mere general allegations which do not show facts in detail and with precision.” Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 738 , 625 A.2d 1005 (1993). Nevertheless, the court views the facts, and all reasonable inferences drawn from the facts, in the light most favorable to the non-moving party. Dobbins v. Washington Suburban Sanitary Comm’n, 338 Md. 341, 345 , 658 A.2d 675 (1995); Electronics Store, Inc. v. Cellco Partnership, 127 Md.App. 385, 395 , 732 A.2d 980 , cert. denied, 356 Md. 495 , 740 A.2d 613 (1999). When there are no disputes of material fact, the court may resolve the case as a matter of law.

See Md. Rule 2-501(e). In reviewing the trial court’s decision, we must determine whether the court reached the correct legal result. Beatty, 330 Md. at 737 , 625 A.2d 1005 . Generally, we review an award of summary judgment “only on the grounds relied upon by the trial court.” Blades v. Woods, 338 Md. 475, 478 , ¹³⁴ 659 A.2d 872 (1995).

But, “[i]f the alternative ground is one upon which the circuit court would have had no discretion to deny summary judgment, summary judgment may be granted for a reason not relied upon by the trial court.” Davis v. Goodman, 117 Md.App. 378 , 395 n. 3, 700 A.2d 798 (1997) (citing Blades, 338 Md. at 478 , 659 A.2d 872 ); accord Suburban Hosp., Inc. v. Maryland Health Resources Planning Comm’n, 125 Md.App. 579 , 587 n. 1, 726 A.2d 807 , cert. granted, 354 Md. 570 , 731 A.2d 969 (1999). When a motion is based solely upon “a pure issue of law that could not properly be submitted to a trier of fact,” then “we will affirm on an alternative ground.” Davis, 117 Md.App. at 395 n. 3, 700 A.2d 798 . DISCUSSION I. Appellant contends that her suit is covered by the Stipulation, in which appellee conceded liability. Appellee has responded by reinvigorating the argument it raised below, claiming that the Stipulation does not apply to appellant because it does not apply to any Abate I cases.

Rather, appellee maintains that the Stipulation is an unambiguous contract applicable bn its face only to Abate II plaintiffs represented by Ness, Motley. “[A] stipulation is an agreement between counsel akin to a contract. Like contracts, stipulations are based on mutual assent and interpreted to effectuate the intent of the parties.” State v. Broberg, 342 Md. 544, 558 , 677 A.2d 602 (1996) (citing Burke v. Burke, 204 Md. 637, 645 , 106 A.2d 59 (1954)); see C & K Lord, Inc. v. Carter, 74 Md.App. 68, 94 , 536 A.2d 699 (1988) (stating that a stipulation carries the binding force of a contract); see also Glassman Constr. Co. v. Baltimore Brick Co., 246 Md. 478, 481-82 , 228 A.2d 472 (1967) (referring to dictionary to interpret terms used in stipulation and acknowledging that effect should be given to the intentions of stipulating parties); Bloom v. Graff, 191 Md. 733, 736 , 63 A.2d 313 (1949) (stating that when “a stipulation is agreed ¹³⁵ to by counsel the orderly trial of the case demands that the parties be bound thereby”); Porter v. South Carolina Pub. Serv.

Comm’n, 333 S.C. 12 , 507 S.E.2d 328, 337 (1998) (acknowledging that a court must construe a stipulation like a contract and, therefore, “a stipulation that is unambiguous and explicit must be construed according to the terms the parties have used, as those terms are understood in their plain, ordinary, and popular sense”); 83 C.J.S. Stipulations § 11 (1953) (“In the construction of stipulations the rules applicable to the construction of contracts are generally applicable; the primary rule is to ascertain and give effect to the intention of the parties.”). To guide our review of the Stipulation, we turn to review the well-established body of law governing the interpretation of contracts. 8 A fundamental principle of contract construction is to ascertain and effectuate the intention of the contracting parties, unless that intention is at odds with an established principle of law. Hartford Accident & Indent. Co. v. Scarlett Harbor Assocs.

Ltd Partnership, 109 Md.App. 217, 290-91 , 674 A.2d 106 (1996), aff'd 346 Md. 122 , 695 A.2d 153 (1997). Thus, “[t]he primary source for determining the intention of the parties is the language of the contract itself.” Scarlett Harbor Assocs., 109 Md.App. at 291 , 674 A.2d 106 . The law of objective interpretation of contracts is also applicable to contract construction. See Auction & Estate Representatives, Inc. v. Ashton, 354 Md. 333, 340 , 731 A.2d 441 (1999); Calomiris v. Woods, 353 Md. 425, 435 , 727 A.2d 358 (1999); Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 266 , 686 A.2d 298 (1996).

This means that when the language of a written agreement is clear and unambiguous, it controls, even if the expression is not congruent with the parties’ actual intent at the time of the document’s creation. Ashton, 354 Md. at 340 , 731 A.2d 441 ; Calomiris, 353 Md. at 436 , 727 A.2d 358 ; Nicholson Air Servs., Inc. v. Board of ¹³⁶ County Comm’rs, 120 Md.App. 47, 63 , 706 A.2d 124 (1998); Baltimore Gas & Elec. Co. v. Commercial Union Ins. Co., 113 Md.App. 540, 554 , 688 A.2d 496 (1997); see General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261 , 492 A.2d 1306 (1985) (“[T]he true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.”).

Therefore, “the clear and unambiguous language of an agreement will not give way to what the parties thought that the agreement meant or intended it to mean.” Calomiris, 353 Md. at 436 , 727 A.2d 358 . Moreover, “[a] contract must be construed as a whole, and effect given to every clause and phrase, so as not to omit an important part of the agreement.” Baltimore Gas & Elec. Co., 113 Md.App. at 554 , 688 A.2d 496 . Contractual language is considered ambiguous “if, when read by a reasonably prudent person, it is susceptible of more than one meaning.” Calomiris, 353 Md. at 436 , 727 A.2d 358 ; accord Ashton, 354 at 340, 731 A.2d 441 ; Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 596 , 578 A.2d 1202 (1990).

In determining whether language is susceptible of more than one meaning, we are not precluded from considering “the character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution.” Pacific Indem. Co. v. Interstate Fire & Cas. Co., 302 Md. 383, 388 , 488 A.2d 486 (1985). If ambiguity is found to exist, then extrinsic evidence may be used to determine the parties’ intent.

Sullins v. Allstate Ins. Co., 340 Md. 503, 508 , 667 A.2d 617 (1995); Pacific Indem. Co., 302 Md. at 389 , 488 A.2d 486 ; see Kendall v. Nationwide Ins. Co., 348 Md. 157, 170 , 702 A.2d 767 (1997); cf. Calomiris, 353 Md. at 433 , 727 A.2d 358 (“All courts generally agree that parol evidence is admissible when the written words are sufficiently ambiguous.”).

As the Court of Appeals recently said in Calomiris, 353 Md. at 434 , 727 A.2d 358 , “ ‘[t]he question of whether a contract is ambiguous ordinarily is determined by the court as a question of law.’ ” (Alteration in original) (quoting State ¹³⁷ Highway Admin. v. David A. Bramble, Inc., 351 Md. 226, 239 , 717 A.2d 943 (1998)); see Ashton, 354 Md. at 341 , 731 A.2d 441 ; JBG/Twinbrook Metro Ltd. v. Wheeler, 346 Md. 601, 625 , 697 A.2d 898 (1997). The Calomiris Court explained, 353 Md. at 434-35 , 727 A.2d 358 : [T]he determination of ambiguity ... is subject to de novo review by the appellate court.... [T]he review is essentially a “paper” review where the same contractual language is before the appellate court as was before the trial court. Since neither the credibility of witnesses nor the evaluation of evidence, other than the written contract, is in issue, the policy reasons behind deferring to the trial judge under the clearly erroneous standard are inapplicable. In essence, an appellate court reviewing a contract must determine whether the trial court was legally correct.

See id. If the trial court determined that the contract is ambiguous, and that determination is upheld on appeal, then the clearly erroneous standard is implicated as to the lower court’s use of extrinsic evidence with respect to the contract. See id. The parties disagree about whether appellant is one of “the Plaintiffs” subject to the Stipulation.

It is evident from the court’s ruling at the close of the motion hearing that the court did not find the Stipulation ambiguous. Relying on the parol evidence rule, the court expressly refused to consider extrinsic evidence proffered by the parties as to the intent of the stipulating parties. We agree with the trial court that the Stipulation was not ambiguous. Moreover, we conclude from the unambiguous language of the document that it does not apply to appellant’s ease.

As set forth more fully above, the Stipulation provided, in part: Each of the Plaintiffs represented by the undersigned counsel whose cases have been consolidated in the case number captioned above, hereby agree with Defendant Porter Hayden Company that Porter Hayden waives proof of its alleged negligence and strict liability, in exchange for ¹³⁸ which each Plaintiff waives and dismisses with prejudice his or her claim for punitive damages and any claim of breach of warranty, fraud, conspiracy, and/or market share. (Emphasis added). The Stipulation expressly states that it applies to those plaintiffs “whose cases have been consolidated in the case number captioned above.” It is equally clear that Consolidation number 93076701 is the only case number listed on the Stipulation. Moreover, it is undisputed that 93076701 is the trial number assigned to Abate II.

Further, it is uncontroverted that appellant was a common issue plaintiff in Abate I, not Abate II. Thus, by its terms, the Stipulation was expressly limited to those plaintiffs represented by Ness, Motley whose cases were part of the consolidation in Abate II. Therefore, the Stipulation does not apply to appellant as an Abate I plaintiff.

II

Regardless of whether the Stipulation applied to appellant, the trial court concluded that appellant was barred from recovery because Pettiford’s exposure to asbestos-containing products ended in 1945, and the court believed that the Abate I jury exonerated appellee for the period prior to 1956. Appellant asserts that, even if the Stipulation does not apply to her case, the court erred in granting summary judgment, because it erroneously interpreted the significance of the 1956 date in the Abate I verdict, and incorrectly found that Porter Hayden is not liable for compensatory damages to any common issue plaintiff who was last exposed to asbestos prior to 1956. Appellant seems to maintain that the jury’s finding with respect to appellee’s liability as of 1956 meant that, beginning at that time, appellee owed Pettiford a continuing duty to warn him of hazards associated with his earlier exposure to asbestos-containing products and was negligent for failing to do so. Appellee counters that the jury verdict in Abate I indisputably established that “there was no breach of a duty to ¹³⁹ warn at the date of Mr. Pettiford’s exposure,” and no liability to anyone who was exposed prior to 1956.

In essence, appellant asserts that the Abate I jury determined that appellee became liable for asbestos-related injuries as of 1956, irrespective of the date of a plaintiff’s exposure. In contrast, appellee argues that the jury determined that appellee could only be liable for injuries to a plaintiff who was exposed in 1956 or later. To coin our own phrases, appellant contends that 1956 is a “liability start date,” while appellee maintains that 1956 is an “exposure start date” or a “liability cut-off date.” In its ruling, the motion judge suggested that appellant’s entitlement to a mini-trial depended on what the jury meant in rendering its verdict in Abate I. We have no difficulty with that analysis. The court then proceeded to determine that the verdict in Abate I barred appellant’s recovery because, in effect, 1956 represented a liability cut-off date.

Consequently, the court concluded that appellee is not liable to appellant as a common issue plaintiff, because the decedent’s